J-E01001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
KARIM HUSIEN WRIGHT,
Appellant No. 648 MDA 2011
Appeal from the PCRA Order entered March 11, 2011, in the Court of Common Pleas of Berks County, Criminal Division, at No(s): CP-06-CR-0004799-2002
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., and PANELLA, DONOHUE, ALLEN, LAZARUS, MUNDY, and OLSON, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 05, 2014
the order denying his
first petition filed pursuant to the Post Conviction Relief Ac
Pa.C.S.A. §§ 9541-46. After careful review, we affirm.
The pertinent facts and procedural history are as follows: On May 3,
2002, Appellant inside
an after-hours establishment called the Tunnel Club. Prior to the shooting,
Appellant rented a room at the Ramada Inn with Lynnita Theodile and her
boyfriend, Dante Jackson. Two other men arrived at the hotel and Appellant
N.T.,
3/24/03, at 123. Ms. Theodile did not observe Appellant with a gun at the
time. J-E01001-14
Appellant then traveled to the Tunnel Club. Jermaine Holmes testified
that he witnessed Appellant become involved in a brief physical altercation
with the victim. According to Mr. Holmes, Appellant and the victim were
involved in a fistfight when Appellant pulled a handgun from his waistband
with his left hand and shot the victim in his right upper chest. The wound
caused massive internal bleeding and resulted in the
the shooting, Mr. Holmes saw Appellant run toward the front door, although
he did not see him exit that door. Another eyewitness, Jesus Hernandez
Corona, testified that he did not see Appellant fire the fatal shot, but that
immediately after gunshots rang out, he observed Appellant standing in the
area where the victim was shot holding a firearm in the air. Following the
shooting, Appellant traveled to North Carolina with Dante Jackson.
While en route, Appellant admitted to Jackson that he killed the victim.
Mr. Jackson, who was a juvenile, signed a written statement for police in the
Dengler, that Appellant admitted killing the victim. According to Mr.
Dengler, Appellant stated that he left the club after an altercation with the
victim, retrieved a gun, and then returned and shot the victim. Finally, a
Commonwealth witness testified that upon returning to his prison block
following a religious service, he relayed a message from Appellant to Mr.
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On September 30, 2002, the Commonwealth charged Appellant with
first-degree murder, aggravated assault causing serious bodily injury,
aggravated assault causing bodily injury with a deadly weapon, recklessly
endangering another person, unlawful possession of a firearm, possessing a
firearm without a license, and two separate counts of possessing an
instrument of crime. At the conclusion of trial, the jury convicted Appellant
of the aforementioned charges. The trial court then sentenced Appellant to
the mandatory term of life imprisonment without parole for the murder
charge, and a consecutive sentence of three to seven years imprisonment
for possession of a firearm without a license.
Appellant filed a timely appeal. In an unpublished memorandum filed
on March 9, 2004, this Cour
Commonwealth v. Wright, 850 A.2d 17 (Pa. Super. 2004). Appellant did
not file a petition for allowance of appeal to our Supreme Court. On March
pro se PCRA petition, which
we forwarded to the Berks County Clerk of Courts pursuant to Pa.R.A.P.
905(a)(4).
14, 2005. On May 3, 2005, the PCRA court appointed counsel. In the years
that followed, appointed counsel, as well as her replacement, filed several
requests for a continuance, and then sought leave to withdraw. On January
3, 2008, third PCRA counsel was appointed for Appellant. PCRA counsel
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filed, and the PCRA court granted, multiple continuances. Ultimately, PCRA
counsel filed a twenty-three page Turner/Finley1 no-merit letter and a
request to withdraw on August 24, 2010.
Berks County, Pennsylvania. In addition, [PCRA counsel] has reviewed each
petition, reviewed the transcriptions of the
proceeding, thoroughly analyzed and researched the factual and legal
-Merit
Letter, 8/24/10, at 2. PCRA counsel then addressed each issue Appellant
sought to raise, and explained why, in his professional opinion, the claim
investigate and/or call five witnesses, PCRA counsel averred in the letter that
he informed Appell
Id. at 4. PCRA counsel
request to the PCRA Court for funds to hire a private investigator,
[Appellant] would need to provide some support beyond the mere
Id. at 4-5. Nevertheless, PCRA counsel stated that he attempted to ____________________________________________
1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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investigate each of these witnesses, and based on that investigation,
withdraw.
On February 17, 2011, the PCRA court issued a fifteen-page
Pa.R.Crim.P. 907 notice of intent to dismiss, discussing the merits of each of
the issues Appellant raised in his pro se petition, and permitting PCRA
counsel to withdraw. Appellant filed a pro se response to the notice of
dismissal, and the court issued its final order on March 11, 2011, denying
Appellant filed a timely pro se appeal to this Court. In an unpublished
memorandum filed on December 17, 2012, a divided panel affirmed the
-conviction relief. On January 11, 2013,
Appellant filed a pro se
en banc
reargument, and withdrew the original panel decision. On October 21, 2013,
we entered an order directing the PCRA court to appoint counsel to
represent Appellant for purposes of en banc reargument. Current counsel
entered his appearance on November 4, 2013.
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On January 7, 2014,
an Anders2 brief and a petition to withdraw. Compliance with Anders
applies to counsel who seeks to withdraw from representation on direct
appeal. Anders imposes stricter requirements than those imposed when
counsel seeks to withdraw during the post-conviction process pursuant to
Turner/Finley, supra. See Commonwealth v. Fusselman, 866 A.2d
that the issues Appellant wishes to raise have no merit under a
Turner/Finley analysis.
Anders brief reveals that it fails to
comply with even the more liberal requirements of a Turner/Finley letter.
See generally, Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009).
Rather than discuss the eleven issues Appellant originally sought to raise in
his pro se PCRA petition, current counsel discussed and rejected two of
now withdrawn panel decision. Anders Brief, at 8. Nevertheless, current
cou
____________________________________________
2 Anders v. California, 386 U.S. 738 (1967).
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withdraw, we will review each claim Appellant raised in his previous pro se
appeal to this Court.3
Those twenty issues may be summarized as follows:
1. Trial counsel was ineffective for failing to subpoena Angel Freytiz, a bouncer who had searched Appellant when he came into the club who would testify that Appellant did not have a gun.
2. Trial counsel was ineffective for failing to put Sam Castillo on the stand, a bartender who saw Appellant at the bar when shots were fired.
3. Trial counsel was ineffective for failing to subpoena Gregg Jefferson, who was with Appellant the whole time and would testify Appellant was not the shooter.
4. Trial counsel was ineffective for failing to call the mother of a defense witness who would have testified that she did not meet lead Criminal Investigator Christopher Santoro, contrary to his testimony.
5. Trial counsel was ineffective for failing to subpoena Melanie Hallman, who would testify that she saw an argument outside the club in which 8-10 shots were fired. She also saw the victim being put in the van that took him to the hospital and saw a purple car speed away.
6. Trial counsel was ineffective for failing to properly cross-examine and impeach state witness Jermaine Holmes through statements that contradict testimony, prior drug charges, and pending charges. Trial counsel
3 Anders Brief, Appellant challenges
A claim of ineffective assistance of appellate PCRA counsel cannot be raised at this time. Nevertheless, as discussed supra claims are meritless, Appellant has not been prejudiced by any perceived rmance.
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should have shown that Criminal Investigator Santoro was lying.
7. Did the PCRA court abuse its discretion and/or err when it allowed PCRA counsel to withdraw?
8. Should Appellant be afforded all records/documents relating to judgment and conviction as to allow Appellant to research the record for meritorious appeal issues and to cite the record in his pro se brief?
9. Did the Commonwealth withhold exculpatory evidence and/or Brady v. Maryland material and/or Giglio v. United States, and/or Jencks Act (18 U.S.C. § 3500) material and their progeny when the Commonwealth failed to disclose material evidence to the defense relating to Commonwealth witnesses; was trial counsel ineffective for failing to investigate/obtain same and was all counsel ineffective for failing to litigate same on appeal?
10. Was trial counsel ineffective for failing to present and/or investigate known evidence that someone other than Appellant committed the crime; was all prior counsel ineffective for failing to litigate same on appeal?
11. Was trial counsel ineffective for failing to call witnesses to aid the defense; was all prior counsel ineffective for failing to appeal the same?
12. Was trial counsel ineffective for failing to object to the
procedures and/or results of luminol (blood presence test) that said witness did not perform and was not qualified as an expert; and did the trial court err/abuse its discretion when it failed to strike said testimony and/or give curative instructions relating to same; was all prior counsel ineffective for failing to litigate same on appeal?
13. Was trial counsel ineffective for failing to strike jurors who knew witnesses and/or people involved in the case
counsel ineffective for failing to litigate same on appeal?
14. Was trial counsel ineffective for failing to object to witnesses who were not sequestered but sat in the trial
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audience and then gave trial testimony; was all prior counsel ineffective for failing to litigate same?
15. Was the interpreter used in these proceedings properly certified/qualified to be used in such capacity; was all prior counsel ineffective for failing to litigate same on appeal?
16. Did the prosecution commit misconduct during closing arguments, and by allowing false testimony by its witnesses at trial; was trial counsel ineffective for failing to object to same; was all prior counsel ineffective for failing to litigate same on appeal?
of witness and lying under oath, denying Appellant a fair trial; was trial counsel ineffective for not objecting to same; was all prior counsel ineffective for failing to litigate same on appeal?
18. Did the trial court abuse its discretion/err when it allowed a witness to evade questions during cross- examination through a Spanish interpreter; was counsel ineffective for failing to remedy same; was all prior counsel ineffective for failing to litigate same on appeal?
19. when trial counsel inadequately advised Appellant
all prior counsel ineffective for failing to litigate same on appeal?
20. Trial counsel was ineffective for failing to investigate available fingerprints that could shed light on who the killer was. Trial counsel failed to investigate defense witness
witness.
See -8.
This Court recently described our scope and standard of review as
follows:
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We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super. 2010). This review is limited to the findings of the PCRA court and the evidence of record. Id. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Id. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Id. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011). However, we afford no such deference to its legal conclusions. Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011); Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007). Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010).
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).
counsel, a petitioner must plead and prove: (1) that the underlying issue
has arguable merit; (2) counsel's actions lacked an objective reasonable
basis; and (3) actual prejudice resulted from counsel's act or failure to act.
If a petitioner fails to plead or meet any elements of the above-cited test,
Id. at 1194. In addition, where the claim pertains to
the witness existed; (ii) the witness was available to testify; (iii) counsel
knew of, or should have known of, the existence of the witness; (iv) the
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witness was willing to testify; and (v) the absence of the testimony was so
prejudicial as to have denied the defendant a fair trial. Commonwealth v.
Chmiel, 30 A.3d 1111, 1143 (Pa. 2011); Commonwealth v. Cox, 983 A.2d
666, 692 (Pa. 2009).
With regard to each witness, Appellant has failed to establish one or
more of the Chmiel factors. Instead, he merely asserts that trial counsel
was ineffective for refusing to interview and subpoena Angel Freytiz, Samuel
Castillo, and Gregg Jefferson. In addition, he maintains that trial counsel
should have called the mother of Felicia Martin to impeach the testimony of
the lead criminal investigator in this matter, and Melanie Hallman to testify
that she saw an argument outside the club where eight to ten shots were
fired and the victim was placed in the van that transported him to the
hospital.
not met his burden of establishing that the witnesses existed, were
available, that trial counsel should have known of the witnesses, or that they
were willing to testify on his behalf. As discussed above, PCRA counsel
informed Appellant that he needed more information before requesting funds
for a private investigator. See supra. Moreover, as to Gregg Jefferson, our
PCRA counsel that Jefferson was not available at the time of trial. See No-
Merit Letter, 8/24/10, at 6. In addition, our review also supports the
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mother could have changed the outcome of the trial, particularly when
Appellant confessed to two different people that he killed the victim. Finally,
contention that Appellant acknowledged that trial counsel did not wish to call
experiences with the witness demonstrated the
See No-Merit Letter, at 7-8.
In sum, because Appellant has not advanced any argument as to the
tripartite ineffectiveness test or provided any argument relative to the law
pertaining to the failure to call a witness, these issues fail. Commonwealth
v. Paddy, 15 A.3d 431, 448 (Pa. 2011).
In his sixth issue, Appellant submits that counsel was ineffective for
not cross-examining Jermaine Holmes about his prior inconsistent statement
to the police, his prior drug charges, and pending charges. Additionally, he
baldy asserts that trial counsel should have shown that Criminal Investigator
Santoro was lying.
ot only did trial
counsel cross-examine Mr. Holmes about his pending criminal charges, and
his delay in coming forward, the Commonwealth itself elicited information
from Mr. Holmes regarding his initial refusal to identify Appellant as the
assailant and his incarcerated status. Specifically, the Commonwealth
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indicated that Mr. Holmes was in jail for drug charges and that he originally
told police that he did not see who shot the victim. Thus, the jury was
was testifying to curry favor with the prosecution, and his credibility issues.
Because Appellant has failed to identify any additional information about
which trial counsel should have inquired, his ineffectiveness claim fails. See
Commonwealth v. Sneed, 45 A.3d 1096, 1108 (rejecting the PCRA
-examine a
Commonwealth witness).
In his seventh issue, Appellant asserts that the PCRA court abused its
discretion in permitting PCRA counsel to withdraw.4 In support of this
argument, he claims that, as with deficient performances of all prior post-
conviction counsel, he was essentially abandoned by his attorneys, a
conclusion relied upon by this Court in Commonwealth v. Hampton, 718
A.2d 1250 (Pa. Super. 1998), as a basis for relief. We disagree.
This Court recently summarized the Turner/Finley requirements in
Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012). We stated:
The Turner/Finley decisions provide the manner for post- conviction counsel to withdraw from representation. The holdings of those cases mandate an independent review of ____________________________________________
907 notice of intent to dismiss. See generally, Pitts, supra.
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the record by competent counsel before a PCRA court or appellate court can authorize an attorney's withdrawal. The necessary independent review requires counsel to file - review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, see Turner, supra, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit.
Rykard, 55 A.3d at 1184 (citation omitted).
As detailed above, PCRA counsel filed a twenty-three page no-merit
letter addressing each of the issues Appellant forwarded in his pro se
petition. Citing to proper legal precedent, and indicating that Appellant
ineffectiveness claims were without merit. After reviewing this letter, and
performing its own independent review, the PCRA court issued a fifteen-page
counsel to
-conviction relief
includes a succession of court-appointed counsel and multiple continuances,
we cannot conclude that Appellant was abandoned by PCRA counsel as was
the petitioner in Hampton, supra. Indeed, as PCRA counsel stated in his
Turner/Finley no-merit letter, Appellant was not forthcoming with adequate
information upon which to investigate certain witnesses. Additionally, PCRA
counsel stated:
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[Appellant] has suggested during the pendency of his PCRA proceedings other witnesses he believed should have been investigated. However, [Appellant] has not provided his prior PCRA counsel or current PCRA counsel with sufficient information to investigate the whereabouts of the witnesses or how their testimony would have changed the outcome of the trial.
No-Merit Letter, 8/24/10, at 8. Therefore, it is not clear from a review of the
record that prior post-conviction counsel were solely responsible for the
delay in this case. Fur
claims of ineffectiveness, Appellant cannot demonstrate that PCRA counsel
rendered ineffective assistance. Therefore, we do not find that the PCRA
court abused its discretion in permitting PCRA counsel to withdraw.
extent that Appellant has raised certain issues as a layered claim of
ineffectiveness, we note that, if we find trial counsel was not ineffective,
subsequent counsel cannot be deemed ineffective for failing to pursue the
claim further. See Commonwealth v. Rykard, 55 A.3d at 1190 (citation
from the underlying claims because proof of the underlying claim is an
relating to his judgment and conviction. This assertion is belied by the
record, where PCRA counsel filed a certificate of service noting that he
mailed copies of all documents pertaining to the case, including notes of
testimony, to Appellant.
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In his ninth position advanced in this appeal, Appellant alleges a
Brady violation. According to Appellant, his uncle, Mr. Dengler, was a paid
Commonwealth informant, and the Commonwealth did not turn over this
information to the defense. At trial, Mr. Dengler testified that he was not
promised anything by the Commonwealth in return for his testimony. N.T.,
3/25/03, at 260. Hence, this claim is devoid of merit.
The next issue Appellant raises, that trial counsel was ineffective for
failing to present or investigate evidence that another person committed the
crime, is waived for failure to present the issue below. Commonwealth v.
Wallace, 724 A.2d 916, 921 n.5 (Pa. 1999). Additionally, the claim fails for
lack of development of the ineffectiveness test. Commonwealth v. Steele,
961 A.2d 786, 797 (Pa. 2008).
object to testimony regarding the use of luminol, is waived for the same
reasons. Further, trial counsel did object to the testimony, and was
overruled in part and sustained with respect to conclusions the officer drew
from the luminol test. N.T., 3/24/03, at 99-100.
The thirteenth claim Appellant raises on appeal is that trial counsel
was ineffective for failing to strike jurors who knew witnesses involved in the
identify the jurors who possessed this familiarity, nor does he set forth the
names of the involved witnesses or family members. As Appellant utterly
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fails to develop this issue, it necessarily fails. See Steele, 961 A.2d at 797.
Moreover, although Appellant did assert the names of jurors and witnesses
in filings with the PCRA court, we agree with its conclusion that Appellant
could not establish prejudice. See PCRA Court Opinion, 5/27/11, at 10.
In his fourteenth issue, Appellant claims that trial counsel was
ineffective for not requesting that Ms. Collado, Ms. Theodile, and Barry
Jackson, the father of Dante Jackson, be sequestered. Consistent with his
prior averments, Appellant presents no argument on the ineffectiveness test.
Our review of the record suppo
if the witnesses were not sequestered, their testimony did not overlap.
the Tunnel Club. Ms. Collado indicated that she saw Appellant at the club,
but did not witness him fire the fatal shot. Lastly, Barry Jackson indicated
that he accompanied his son to the police station and that his son signed a
written statement acknowledging that Appellant admitted shooting the
victim. We fail to discern how neglecting to sequester these witnesses could
have prejudiced Appellant.
Next, Appellant argues that trial counsel was ineffective for not
seeking a certified Spanish interpreter, apparently to interpret the testimony
of Mr. Corona. Appellant did not raise this issue before the PCRA court nor
does he advance any legal argument or citation relative to this issue.
Therefore, the issue is waived. Wallace, supra.
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The sixteenth issue Appellant posits is an ineffective-assistance claim
relative to alleged prosecutorial misconduct occurring during the
how the prosecution acted inappropriately, but states that it presented false
m is waived. Steele, supra.
before the PCRA court, that Appellant is referencing the testimony of Dante
Jackson. When called by the Commonwealth at trial, Mr. Jackson denied
that Appellant confessed to killing the victim, and disavowed a signed
statement he had given the authorities in the presence of his father. See
N.T., 3/25/03, at 213-222. On cross-examination, Mr. Jackson reiterated
that his detailed statement was not the truth. Id. at 223.
After Mr. Jackson completed his testimony, the trial court ordered,
outside the presence of the jury, that he be detained for committing perjury.
N.T., 3/25/03, at 241. Subsequently, Mr. Jackson indicated that he wished
to retake the stand and admit that Appellant confessed to him. Id. at 347-
348. However, the trial court did not permit him to do so. Id. at 349.
the Commonwealth did not induce any false testimony.
The seventeenth issue that Appellant raises is that Criminal
Investigator Santoro harassed a witness, lied under oath, and coerced
witness statements. According to Appellant, Felicia Martin and her mother
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were coerced and harassed into signing statements and lying under oath.
Our
claim is waived because Appellant did not raise this issue before the PCRA
court. Wallace, supra. Even if the issue was preserved, Ms. Martin did not
provide testimony that damaged Appellant, as she refused to identify him as
the shooter, and therefore, no prejudice could have resulted. See N.T.,
3/26/03, at 408-
t relates to
her.
ineffective for allowing a witness to evade questions during cross-
examination through a Spanish interpreter. Presumably, Appellant is
referencing Mr. Corona, but he does not identify the witness nor does he
present any cogent legal argument in his brief. For these reasons, his issue
fails. Steele, supra.
unknowingly waive his right to testify. Appellant asserts that trial counsel
he could only be impeached based on prior convictions, and that if he
te
Id.
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In Commonwealth v. Lawson, 762 A.2d 753 (Pa.Super. 2000), we
stated:
It is well settled that a defendant who made a knowing, voluntary, intelligent waiver of testimony may not later claim ineffective assistance of counsel for failure to testify. See Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261, 274-75 (2000); Commonwealth v. Schultz, 707 A.2d 513, 520 (Pa.Super.1 appellant may believe her failure to testify prejudiced her, the fact remains that appellant's decision was fully informed and voluntary. As such, neither trial nor appellate counsel may be deemed ineffective in this . See also Commonwealth v. Wallace, 347 Pa.Super. 248, 500 A.2d 816, 819-820 (1985); Commonwealth v. Spells, 490 Pa. 282, 416 A.2d 470,
intelligently decided not to testify, based on conversations with his lawyer, and the colloquy with the trial judge, we
Id. at 755-56. In addition, we have held:
In order to support a claim that counsel was ineffective for
must demonstrate either that (1) counsel interfered with his client's freedom to testify, or (2) counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision by the client not to testify in his own
Commonwealth v. Todd, 820 A.2d 707, 711 (Pa.Super. 2003).
[Appellant] in detail that it is his determination as to whether or not he
wants to testify. I believe in light of the defense strategy and his prior
criminal r
3/26/03, at 406. The trial court asked Appellant if that was correct, and he
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responded in the affirmative. Thus, Appellant cannot demonstrate that
counsel interfered with his ability to testify. Lawson, supra.
Indeed, Appellant had a prior record score of five and was previously
convicted of burglary. See N.T., 4/7/03, at 5. Burglary is a crimen falsi
conviction. Commonwealth v. Trippett, 932 A.2d 188, 199 (Pa.Super.
2007). Appellant was twenty-two at the time of his conviction in the
underlying matter, and was convicted of burglary as an adult. Hence, his
burglary conviction was within ten years of the charges in this matter, and
therefore admissible as crimen falsi evidence. See Pa.R.E. 609.
Finally, Appel be
impeached based on a prior homicide incident is highly disingenuous and
refuted by the record. Trial counsel actually successfully precluded evidence
that Appellant shot another individual in a prior incident in which Appellant
was also wounded. See
issue is entirely without merit.
The final position Appellant advances on appeal is that trial counsel
was ineffective for failing to investigate fingerprint evidence as well as
conducting an insufficient investigation into his own defense witness, Desiree
Portner. Ms. Portner was not called as a witness, although her proffered
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testimony was that she witnessed another person commit the shooting. See
N.T., 3/26/03, at 360. During sentencing, the trial court placed on the
record the person Ms. Portner accused of committing the crime was in prison
at the time of the incident and subsequently died prior to trial. See N.T.,
4/7/03, at 12. Furthermore, Appellant does not adequately develop his
claim. We therefore do not need to consider it further. Steele, supra.
Within his brief, Appellant does present argument relative to trial
Appellant maintains that counsel should have retained an expert to prove
that fingerprints on the murder weapon were not his. However, no gun was
hired an expert to test fingerprint evidence recovered from the club and the
van that transported the victim to the hospital. Fingerprint evidence from
the club and van were of no evidentiary value in establishing who murdered
the victim. Hence, this issue affords no relief to Appellant. Further, the
failure to call an expert witness is governed by the same test delineated
supra relative to the failure to call a witness. See Chmiel, 30 A.3d at
1143. Appellant has not indicated an expert that was available or willing to
testify. This claim of ineffectiveness fails.
In sum, our review of the record supports the conclusion by the PCRA
-
conviction relief was wholly devoid of merit. The additional claims raised by
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Appellant in his pro se brief are equally meritless or were not preserved for
conviction relief.
Petition to withdraw denied. Order affirmed.
Judge Donohue files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/5/2014
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